"enemy combatant" (no spam)

HighLordDave · Post by **HighLordDave** » Wed Jun 12, 2002 5:24 pm

Originally posted by Weasel

"Citizens who associate themselves with the military arm of the enemy government, and with its aid, [317 U.S. 1, 38] guidance and direction enter this country bent on hostile acts are enemy belligerents within the meaning of the Hague Convention and the law of war."

<snip>

Is it guilty by being associated with Al Qaeda which is/was part of the Taliban which ruled Afganistan...a country the US, I thought was at war with.

The key words in there are "military arm of the enemy government". The Al-Qaeda is not an organised standing army; they are a militia. The Taliban was never recognised as the legitimate government of Afghanistan by the United States (and most of the rest of the world). If the Justice Department tries to use this precedent in court, it will fail.

Further, the United States is not at war, despite what Dubya and his cronies tell us every night on the news. The "war" on terrorism is a contrived soundbyte that Dubya has cooked up to bolster his popularity and cover his (unconstitutional) actions. The singular entity which has the power to declare war on another state is the Congress. The President of the United States can't do it, individuals can't do it, the Supreme Court can't do it. Only the Congress is so empowered (Article 1, Section 8 of the Constitution).

The president (or anyone else for that matter) can "declare war" on whatever they hell he wants; last I checked we were at "war" with poverty, illiteracy and drugs (to name a few causes). However, none of those are binding to the nation and none of those are actual wars.

As our friend VoodooDali says, I think the government is using this as a way to pump Padilla for everything he knows and let him become the precedent. They know he'll win on appeal and they know that what they're doing is unconsitutional at its very core. However, during that time, they've gleaned whatever they can from him and by the time his case makes its way to the Supreme Court (where it will probably end up), he will have long since ceased to be of any use to them.

Weasel · Post by **Weasel** » Wed Jun 12, 2002 6:41 pm

Originally posted by HighLordDave

The key words in there are "military arm of the enemy government". The Al-Qaeda is not an organised standing army; they are a militia. The Taliban was never recognised as the legitimate government of Afghanistan by the United States (and most of the rest of the world). If the Justice Department tries to use this precedent in court, it will fail.

I don't know enough constitutional law to say yea or nay it will fail. As I say above, it will be fought out in court..then most likely it will be appealed to the Supreme court.

Originally posted by HighLordDave
Further, the United States is not at war, despite what Dubya and his cronies tell us every night on the news. The "war" on terrorism is a contrived soundbyte that Dubya has cooked up to bolster his popularity and cover his (unconstitutional) actions. The singular entity which has the power to declare war on another state is the Congress. The President of the United States can't do it, individuals can't do it, the Supreme Court can't do it. Only the Congress is so empowered (Article 1, Section 8 of the Constitution).

Well I know something is happening in Afganistan..(I thought this was the war Bush was talking about). If it's not a "war" ..what is it?

HighLordDave · Post by **HighLordDave** » Wed Jun 12, 2002 8:03 pm

The United States can (and has) mounted military campaigns all around the world without a formal declaration of war. Korea, Vietnam, Grenada, etc. were all performed without us (as a nation) going to war. The Constitution is a tricky document. On the one hand, it charges the Congress with the power to declare war (Article 2, Section 8). On the other, it names the President of the United States as commander-in-chief of the army and navy (Article 3, Section 2).

As commander-in-chief, the president can order our soldiers to go anywhere and perform almost any mission they are capable of (ie-mount an air strike against Moamar Khaddafi, rescue hostages, search ships for drugs, train Fillipino soldiers to combat terrorists, etc.). The Congress cannot stop him. What the president is not empowered to do is attack a foreign state and wage an aggressive war. He can act in the defense of our nation and he can protect American citizens, but he is not empowered to start shooting at someone for no reason.

If the president orders a military action that the Congress does not approve of, their main recourse is to cut funding, since holding the government's pursestrings is one of their constitutional powers (Article 2, Section 7). As such, the president will often go before the Congress and ask for their blessing on the military action he is about to undertake, but he is not asking for a declaration of war.

The last time the United States declared war on someone was in 1941 (Roosevelt's "Day of Infamy" speech, followed by a declaration of war against Germany and Italy after they declared war on us). Our actions in Korea were under the auspices of the United Nations and the primary mission was peacekeeping (approved only because the Soviets and Chinese boycotted the vote). In 1967(?), after the destroyer USS Maddox was fired upon in the Gulf of Tonkin, President Johnson went to Congress and asked for (and received) the blessing and funding to escalate the fighting in Vietnam. The Gulf of Tonkin Resolution was essentially a carte blanche for Johnson to do whatever the hell he wanted in Vietnam without Congressional controls.

In response, Congress passed the War Powers Act in 1973 which limited the amount of time and the scope of military actions the president could order for American military forces. Reagan never asked for Congressional approval for Grenada or his air strike against Libya because the War Powers Act didn't apply (neither operation was large enough in scope). Since then, President Bush (the elder) and Dubya have gone before Congress to wage their military campaigns, but neither ever asked for a formal declaration of war (Bush's invasion of Panama was undertaken without Congressional approval because it was a quick and dirty operation, but he did go before Congress before invading Iraq).

Part of the problem for Dubya is that there is no one to declare war against. In this context, "war" is a state of belligerency between nations, and in the case of the Taliban, they weren't a government, so we couldn't declare war against them. Similarly, "terrorism" isn't a state; it's an idea or an action. We can't declare war against terrorism.

Whatever guise or euphamism we use when describing the actions of American soldiers in Afghanistan, we are acting in our national interests but we are not at war, at least not in the kind of war that constitutionally merits throwing away civil rights and the basic freedoms to which all Americans are entitled.

frogus · Post by **frogus** » Thu Jun 13, 2002 2:43 am

I agree with Mama Vood (although perhaps the 1984 quotes were a bit rich for me

). The UN is constantly getting harrassed about the way people dissappear in Libya, Sri Lanka etc... How the police just take students out of crowds and put them in cells with no access to legal facilities for interrogation and torture: That's because the people have done nothing wrong... They oppose the government (or whatever), and are nullified just for holding beliefs.

The only difference is that in those cases, the victims never intended to do anything wrong, whereas this man intended to kill a lot of people (allegedly).

But really, he is in just the same position. I'm sure he hates America, but since when has that been a crime? Until he acts on it, the stuff inside his head is his business. I'm sure that we are all free to think what we like (even about GWB

). Perhaps they could get him on a little customs offence, a passport issue, or do him for tax evasion like Al Capone...I am almost certain that the man ought to be detained, but if the law says 'No', then keeping him any longer undermines everything that America (until recently) stands for.

If we ignore the law which is accepted by the mjority, then soon enough it will just be Louis Freeh deciding what's right and what's wrong...and if he can, why not our man Padilla?

fable · Post by **fable** » Thu Jun 13, 2002 8:15 am

I'm inclining to believe that this is an exercise, serious or cynical, in prolonging the crisis state-of-mind of the American people. The administration may feel that this is necessary to protect US interests, or it may feel that doing so increases Bush's likelihood to get re-elected and ram through Congress whatever policy changes he wishes in the meantime; it's quite possible that this is, in fact, both: a truly concerned administration whose members are not above taking advantage of the situation.

I would feel more certain that we weren't being played for a bunch of ignorant suckers by our government if they didn't continually make purely emotive public pleas in favor of holding a citizen without due process of law. To me, the abesence of sound reasoning is an admission that the administration knows they're faking it, and that the only way to get the public on their side is by whipping up a vigilante mentality.

I truly hope I'm wrong, here.

VoodooDali · Post by **VoodooDali** » Thu Jun 13, 2002 8:35 am

Another related thought I have this dilemma--

If we do start tossing aside the basic rights afforded to us as US citizens in the name of defending ourselves against terrorism, what happens when we are no longer under serious threat? What will the Homeland Defense agency do? Who will they go after? I think that history shows that when security agencies have had no foreign entities to go after, they have again and again turned on their own citizens. We cannot forget the lessons of the McCarthy Era. It's hard to imagine now, but communists were seen as a serious threat then--as serious as militant muslims seem to us now--and it was generally believed that they had infiltrated many levels of our society. A lot of innocent people paid a heavy price for the actions of our government then.

There is a theory that militant Islam is on its last legs, and that the severity of the attacks are evidence of this. Having visited a couple of countries over there and knowing so many people from the area, I tend to agree. For an interesting article, read the NY Times Book Review of "JIHAD: The Trail of Political Islam by Gilles Kepel" at http://query.nytimes.com/search/full-pa ... A9649C8B63

Weasel · Post by **Weasel** » Thu Jun 13, 2002 9:21 am

Originally posted by HighLordDave
Whatever guise or euphamism we use when describing the actions of American soldiers in Afghanistan, we are acting in our national interests but we are not at war, at least not in the kind of war that constitutionally merits throwing away civil rights and the basic freedoms to which all Americans are entitled.

And here is where my view differs. Once an American decides to aid/fight for any group determined to wipe Americans out, he is no longer an American and does not deserve the rights of an American.

Now has this American did any "aid/fight" for any such group?

This I cannot answer.

Gwalchmai · Post by **Gwalchmai** » Thu Jun 13, 2002 9:39 am

Originally posted by fable
I'm inclining to believe that this is an exercise, serious or cynical, in prolonging the crisis state-of-mind of the American people.

*puts finger on nose, points at fable, nods head vigorously*

HighLordDave · Post by **HighLordDave** » Thu Jun 13, 2002 11:31 am

Originally posted by Weasel
And here is where my view differs. Once an American decides to aid/fight for any group determined to wipe Americans out, he is no longer an American and does not deserve the rights of an American.

However, the law does not see it that way. Unless Padilla renounces his citizenship, he is still entitled to all of the constitutional protections that you and I are. I am also fairly certain that non-citizens are entitled to the same rights under the law that citizens are. The only difference is that foreign nationals can be deported if they break the law and they cannot vote.

I believe that Ernest Miranda (of the Miranda v. Arizona decision) was a Mexican national who sued and won his freedom because his constitutional rights were not observed. So I am not sure that even renouncing his American citizenship should grant the goverment special privilege in treating him differently from any other (accused) civilian terrorist.

The more I read about Padilla, the more I am convinced that the government does not want to prosecute him. First of all, they know they'll lose, if for no other reason than because they unlawfully arrested and detained him. However, he is far more valuable to him as an intelligence gold mine and in the process of "debriefing" him, they are shredding the Constitution. This sets a dangerous precedent for what Dubya and his cronies may do in the future to other people who do not agree with our official policy.

Today they are arresting accused terrorists and holding them in violation of their rights. Who are they going to arrest and detain indefinitely tomorrow? Political dissidents (ie-Democrats)? Environmentalists? Al Sharpton and other black leaders? Jews?

[puts on croaky voice]Once we start down this path, forever will it dominate our destiny.[/croaky voice off] (Apologies to the ass-whuppin' two foot-tall Jedi Master)

Kayless · Post by **Kayless** » Thu Jun 13, 2002 3:28 pm

Originally posted by Weasel
And here is where my view differs. Once an American decides to aid/fight for any group determined to wipe Americans out, he is no longer an American and does not deserve the rights of an American.

I don't have much to add other than I wholeheartedly agree with this (as I said earlier).

Originally posted by HighLordDave
[puts on croaky voice]Once we start down this path, forever will it dominate our destiny.[/croaky voice off]

[Anakin Voice]Well, if it works...[/Anakin Voice]

Ode to a Grasshopper · Fri Jun 14, 2002 2:38 am

Originally posted by Kayless

[Anakin Voice]Well, if it works...[/Anakin Voice]

Kay, you're breaking my heart here.

Surely until it is proven that this man conspired against the American people he is entitled to his constitutional rights?

HighLordDave · Post by **HighLordDave** » Fri Jun 14, 2002 5:51 am

@Weasel and Kayless:
What he may or may not believe is irrelevant. The only things you know about him are what the government has told you about him (and the government would never, ever lie, right?). The reason for terming him an "enemy combatant" is because they know they can't convict him in court and they can't hold him longer if they observe his rights.

Why else would they deny Padilla (who I remind you is an American citizen) his rights while extending the full protection of the law and the due process of the law to Zacharias Moussaui, who is not a citizen and is being prosecuted for the 11 September attacks?

The Bill of Rights, and specifically Amendments 4-8, protect us from exactly what is happing to Padilla. Among other things, they guarantee the due process of law, legal representation, a quick and impartial hearing, and trial by jury. The issue is larger than he is. The issue is whether or not the government can arbitrarily label someone a "bad guy" and then stuff him away in a prison and leave him to rot without bringing him to trial.

This whole incident reminds me of the Denzel Washington movie, The Siege in which New York is under attack by cells of militant Islamic terrorists. To combat the threat, the government imposes martial law, rounds up people of Arab appearance and locks them up in camps and resorts to torture and other illegal activities. As I've said before, the government has offered no evidence or proof that Padilla has done anything wrong and they appear relucatant to give him his day in court. If this is allowed to proceed, where will it stop?

Weasel · Post by **Weasel** » Fri Jun 14, 2002 6:14 am

@HLD In my opinion there is a difference between thinking the government is lying and knowing the the government is lying.

As to the reason they are holding him, the only thing I have found is the "Ex Parte Quirin". Now I know you have said this will not work. I cannot tell if it will or not. (I will say, with the supreme court set up the way it is now....it might have a chance)

Who are they going to arrest and detain indefinitely tomorrow? Political dissidents (ie-Democrats)? Environmentalists? Al Sharpton and other black leaders? Jews?

Even though I might sound like I want the rights thrown out..I will never show support for something like this. Now if any of these listed decided to plan to destroy the US, I feel then they have lost their rights and should be arrested.

It all comes down to should I trust the US government and in the case we are talking about, I will give them the benefit of doupt. (At least till more information is avaible)

fable · Post by **fable** » Fri Jun 14, 2002 9:10 am

It all comes down to should I trust the US government and in the case we are talking about, I will give them the benefit of doupt. (At least till more information is avaible)

But trust and personal opinion aren't what this mess is all about: It's a matter of upholding the law. Yes, we can all argue for years to come (or at least, until any revelations occur) about whether the government is lying, telling the absolute truth, or doing something that combines both. But the point is that the relevant Constitutional amendments are not meant to convey rights only to people we like. They are uniform, without prejudice according to personal viewpoint. If these laws are abrogated by our government to squeeze information out of a suspect, by inference, what's to prevent these laws or any other law from being so abrogated, for whatever ostensibly noble purpose the government may conceive? Are we to assume that "oh, we're innocent, therefore you and I have nothing to fear?" Is rule of law supposed to be supplanted with rule of opinion by elected officials?

Weasel · Post by **Weasel** » Fri Jun 14, 2002 9:44 am

@Fable, It also depends on how the laws are interpeded(sp).

In the committee briefing Thursday, government officials said that previous court cases, including a 1942 Supreme Court case, show that even citizens can qualify as "enemy combatants" — the legal term the Justice Department argues allows a person to be held without trial. An American captured with German saboteurs in 1946 was executed under the ruling.

The government also told committee members that Padilla fits all of the criteria of an enemy combatant because he met with a senior al-Qaida official, learned how to blow up a dirty bomb, got training and financing and then came to the United States with the intent to do harm.

The Justice Department told the committee that the executive branch alone has the power to decide when a person qualifies as a combatant, the U.S. official said. Officials decided against holding a criminal trial for Padilla because it might reveal intelligence sources.

Source of quote

Now from my understanding this "Ex Parte Quirin" is part of the law. It might not seem like a good law, but until it is overturned it can be used.

HighLordDave · Post by **HighLordDave** » Fri Jun 14, 2002 9:54 am

The precedent the government is using is incorrect (I have made my case for this earlier in the thread). However, they can continue to hold him until he, his family or a designated representative sues the Department of Defense and the Department of Justice at which point the courts will probably order his release from military custody. It is my understanding that his court-appointed lawyer has filed such a motion, but there is no telling how long this petition will take to make it through the process.

The government (or people for that matter) can do whatever the hell it wants until someone sues them and gets an order to cease the illegal activity. There is a case up here in West Virginia in which an high school student sued the local school board and won, because the planned invocation being offered at graduation offended is aethistic religious (non) beliefs. Until someone took them to court, the school had always had prayer at graduation.

Similarly, until the Padilla case sets a precedent, one way or the other, the government can (and probably will) continue to label suspected terrorists and other people as "enemy combatants" and hold them illegally.

Gwalchmai · Post by **Gwalchmai** » Fri Jun 14, 2002 10:02 am

It sounds like some aspects of the law (Ex Parte Quirim) may contradict other aspects of the law (Bill of Rights Amendments 4-8). Since the law is a dynamic thing, it will be interesting to see how this issue becomes resolved.

Weasel · Post by **Weasel** » Fri Jun 14, 2002 10:12 am

Originally posted by Gwalchmai
It sounds like some aspects of the law (Ex Parte Quirim) may contradict other aspects of the law (Bill of Rights Amendments 4-8). Since the law is a dynamic thing, it will be interesting to see how this issue becomes resolved.

I for one would expect this law to be overturned.

fable · Post by **fable** » Fri Jun 14, 2002 10:24 am

As Weasel suggests, Ex Parte Quirim probably won't stand up. Typically, any law which conflicts with the US Constitution is ultimately overturned. The kicker is that overturning it doesn't occur until the law is challenged and works its way through the courts.

You know, I'd honestly be happier if the government were doing what it did fifty years ago, holding suspects quietly without public knowledge. That was merely a case of doing something against the law, whereas this amounts to a basic challenge by the government in public to the concept of law: that public opinion is more important, and those we hate deserve to be punished without due process. I realize the government may be acting cynically in this fashion, and not mean a word of the statements its made for public consumption--but if that's the case, it's all the more dangerous and ethically repugnant.

Weasel · Post by **Weasel** » Fri Jun 14, 2002 11:16 am

Originally posted by fable
I realize the government may be acting cynically in this fashion, and not mean a word of the statements its made for public consumption--but if that's the case, it's all the more dangerous and ethically repugnant.

The thing I look at...be glad you can vote out the President and his "whatevers" every four years.

I read some where that America is a land of self correcting laws. Meaning (I believe) the "founding fathers" set it where bad laws could be corrected.

Now my personal opinion on the whole mess.

Someone in the Bush camp convinced Bush the odds of winning out weight the odds of losing. Or this "advisor" thinks the fallout from trying this will not be that much. (Very wrong thinking IMHO)
From the report I posted you can already see they are backing down some..(Not pressing charges or trying him). Still if his lawyers don't go ahead and fight this, the law will still be there for Bush or another president to try to use.

As to the person being a danger to the US? Who knows. I have already come to believe a "dirty" bomb will be set off in the US. I see no way the US can stop it from happening. Thinking back to the first atomic bombs... We made it....but if we hadn't someone else would have. Now we see get to see the bad side of human nature us it against us.